Tag Archives: easement

Richardson v. Franc- easements, licenses, and litigation

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Richardson v. Franc is a case of once happy neighbors becoming less so.

There was peace for many years.  For their driveway, James Richardson and Lisa Donetti (“respondents”) had an access easement over their neighbors’ property.  The boundaries of the easement had beautiful landscaping and an expensive and  complicated irrigation and lighting system around and under the driveway.  The respondents and their predecessors maintained the easement with their neighbors for over 20 years.

The Francs bought the neighboring property in 2004.  For six years, they lived in harmony.  In late 2010, the discord began.  Mr. Franc cut the irrigation and electrical lines without notice and then had an attorney send a letter demanding the removal of all landscaping within five days.  Litigation ensued.

The trial court held that there was an irrevocable license to maintain the landscaping and supporting systems.  The Francs appealed.

The landscaping exceeded the defined purpose of the access easement.  The Francs’ predecessor permitted, however, if not encouraged, the landscaping, creating a revocable license.  A license is typically revocable, but can become irrevocable when the grantor knowingly allows acts that involve substantial amounts of money and improvement.  It would then be unfair to terminate the license, which becomes irrevocable.

Licenses and easements are creatures of equity and fairness.  The Francs lost their right to claim fairness when they cut the lines.  The court’s opinion did not say that bad people should not prevail, but I expect that the trial court judge and the appellate panel probably thought it.

Schmidt v. Bank of America– Easements!

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I love easement cases.  Schmidt involves two neighboring parcels that were commonly owned until 1941, at which time the owner sold one of the parcels, reserving an easement for “the right of ingress and egress for public road purposes.”

Flash forward to 2004.  The owner of the parcel that owned the easement started building a three phase condominium project.  He built improvements on, under, and around the reserved easement area, including a locked gate and subsurface sewer and storm lines, oil and sand separators, and slope stabilization measures.

The Schmidts owned the parcel that contained the easement. They sued for trespass, nuisance, and an injunction.  By this time the HOA and Bank of America owned the neighboring property, since the developer defaulted 2/3 of the way through.

Somehow, the HOA and the bank obtained summary judgment that their use of the easement was proper.  The court of appeals reversed, holding that there are factual issues over whether a public access easement includes all of the uses constructed by the developer.

The court also rejected the arguments from the Bank that they should not be liable because it was a mere foreclosing lender.  The opinion recognized that foreclosing lenders who obtain a Trustee’s Deed become owners, with all of the attendant rights and obligations.

The condominium developer showed great chutzpah in developing the roadway far beyond the terms of the original grant of easement.  The key to any easement case is to read the easement to confirm what was granted.


Windsor Pacific, LLC v. Samwood Co., Inc.


Prescriptive easement cases are often entertaining.  In Windsor Pacific, LLC v. Samwood Co., Inc., the plaintiff received from a neighbor written permission to use an access road over the neighbor’s property and property owned by a third party.  The neighbor had an option to purchase the property owned by the third party.

The plaintiff sued to claim an adverse and permanent right to continue to use the access road.  Consent, however, is a defense to any adverse use and the trial court agreed.  On appeal, the plaintiff claimed that the third party never granted permission to use the access road, making that part of the use adverse.

The court of appeal affirmed the decision of the trial court.  The plaintiff believed that its use of the entire access road was permissive when it entered into the written agreement with the neighbor.

The opinion confirms that the plaintiff was equitably estopped to claim an adverse use, regardless of whether or not the neighbor had the authority to grant permission on behalf of the third party.  The fundamental conclusion, however, is that courts are reluctant to grant a permanent interest in real property to a party that does not own it.